45 Ind. App. 172 | Ind. Ct. App. | 1910
Appellant, plaintiff below, sued appellee to recover the sum of $100 for services rendered by him to appellee under an employment as a broker for the sale of certain personal property owned by appellee. Issues were formed and the cause was submitted to the court. Upon timely request, findings of facts were made and conclusions of law stated thereon, and judgment rendered in favor of appellee.
The only error assigned is that the court erred in its conclusions of law.
The following is a fair summary of the facts found: On October 17, 1905, defendant employed plaintiff in this cause to procure for him a purchaser for a stock of goods in the town of Knox, Starke county, Indiana, and in such sale and exchange he was to receive $2,500 in cash, and for which services defendant agreed to pay plaintiff the sum of $100. Pursuant to such employment plaintiff procured Sydney A.
“It is understood and agreed by the parties that the eighty-acre tract named, known as the Rank farm, shall be sold to any purchaser named by the first party herein at $40 per acre, being in gross $3,200. Second party agrees to make to such purchaser his warranty deed for said eighty acres, and to give possession to such purchaser as early as may be. * * * If the first party is unable to name any purchaser according to the provisions of this item, then and in that event this contract shall be void and of no effect; otherwise to be in full force.”
There are other conditions not necessary to be set out. After the execution of the foregoing written contract, dated November 7, 1905, said Uncapher informed the defendant that he could not find or procure a purchaser for said land, and that thereupon said defendant and said Uneapher, by mutual consent and understanding, annulled said written contract, releasing each other therefrom.
On November 10, 1905, Uncapher, after negotiating with defendant, entered into another written contract with him for the purchase of defendant’s stock of goods, and upon which written contract said stock of goods was finally purchased and procured of the defendant herein. By the terms of said second contract, Uncapher agreed to convey by deed .of general warrantj' the forty acres of land described in the first contract, and by deed of quitclaim the eighty acres of land in Marshall county, Indiana, known as the Rank farm, and to pay to said Lundin at the time of signing the contract $1,000 in cash. Said Lundin upon his part, in consideration of the covenants of the said Uncapher, set out, agreed to sell and transfer to Uncapher the stock of goods and groceries, being the same mentioned in the first contract, including all fixtures, except counters and shelving, and to deliver possession upon the terms and conditions as follows: A cash payment of $1,000; conveyance by warranty deed by the first party to the second party of the forty-acre tract; conveyance by quitclaim deed of the eighty-acre tract known as the Rank farm in Marshall county, Indiana. Said Lundin agreed to lease his storeroom, shelving, etc., upon the same terms as provided in the first agreement. It was further agreed that upon the signing of the contract the first part3 should procure for second party the quitclaim deed before named, for the Rank farm, and allow and pay to Lundin all necessary expenses and attorney fees and court costs to obtain possession of the Rank farm, and that Uncapher would pay all taxes now due and payable upon the lands described in item one; that he would assume and pay any and
2. A change made by the vendor or by the vehdee, altering the terms of the original contract, cannot deprive a broker of his rights. McFarland v. Lillard, supra; Lawrence v. Atwood (1878), 1 Ill. App. 217; Bash v. Hill (1871), 62 Ill. 216; Adams v. Decker (1889),
The contract contains this provision:
‘ ‘ If the first party is unable to name any purchaser according to the provisions of this item, then and in that event this contract shall be void and of no effect. ’ ’
Judgment reversed, with instructions to restate the conclusions of law and render judgment in favor of appellant.